Elisha Okoth Otieno & 2 others v Jared Otieno Aoko [2020] KEELC 1433 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed attempts to throw out official land survey reports, ruling they must instead be challenged by questioning the officers during the full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Land Registrar and County Surveyor complied with the consent orders of 1st July 2019
The court found full compliance with both the order to visit the suit parcels and file reports, and the order that elders accompany the officers
The two public officers visited the site on 19th September 2019 and filed their respective reports on 30th September 2019. The reports indicate nine persons attended the exercise. The court held that whether the nine included the elders, and any other issues arising from the reports, was a matter for cross-examination of the authors at the hearing of the suit, not for determination on the application.
The evidential status of the Land Registrar's and County Surveyor's reports
The reports amount to opinion evidence under Sections 48 and 54 of the Evidence Act and are persuasive, not binding; they are mere evidence to be tested by cross-examination
The court classified the reports as opinion evidence under the Evidence Act, citing Amosam Builders and CD Desouza for the proposition that such evidence is persuasive depending on the circumstances. It follows that a party aggrieved by the reports should challenge their authors in cross-examination at the hearing rather than seek their expungement by interlocutory application.
Whether the application for review of the consent order could succeed
The application failed as premature and without merit; the applicants could challenge the reports at the hearing
The court invoked the inherent powers under Section 3 of the Civil Procedure Act, the overriding objective of the Environment and Land Court Act and Article 159 of the Constitution, but held that setting aside the reports was unnecessary since the fair-hearing concerns of the applicants could be met by cross-examination of the officers at the hearing of the suit.
Legal principles established
#- A court shall not entertain an action relating to a dispute as to boundaries of registered land unless the boundaries have been determined in accordance with the Land Registration Act
- Opinion evidence in reports such as those of the Land Registrar and Surveyor is persuasive rather than binding, depending on the facts and circumstances of each case
- There is an unqualified obligation to obey orders of a court of competent jurisdiction
Court orders
#- 1.The application dated 22nd October 2019 and filed on 29th October 2019 by the applicants is dismissed
- 2.Costs of the application to be in the cause
- 3.The applicants are at liberty to challenge the two reports during the hearing of the suit
- Jurisdiction invoked
- Articles 48, 50(1), 159(2)(d) & 165 of the Constitution, 2010; Order 46 Rules 13, 14, 16 and 17 and Sections 1A, 1B, 3, 3A & 63(e) of the Civil Procedure Act, Cap 21; inherent jurisdiction of the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elisha Okoth Otieno & 2 others v Jared Otieno Aoko [2020] KEELC 1433 (KLR)", Case Analysis (2020). Migori ELCC No. 660 of 2017 (consolidated with Migori ELCC No. 146 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1433/eng@2020-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.